The Question of Torture
Mark Bowden, Mark Danner, Darius Rejali, Elaine Scarry, Aryeh Neier

June 1, 2005

Mark Bowden

Mark Danner

Darius Rejali

Elaine Scarry

Aryeh Neier

Edited transcript of a panel discussion held at The New York Public Library, 06/01/05, cosponsored by the Carnegie Council, Live from the New York Public Library, and the New York Review of Books.

• Introduction
• Discussion
• Questions and Answers

Introduction

Tonight is a very serious subject we are addressing, but an important one—too important for any one to be self-important. Therefore, I encourage all the panelists to keep their initial remarks very brief. After my comments, the President of The Carnegie Council will speak briefly. Then our moderator will set the tone, and he will make sure that each panelist makes initial comments for about seven to eight minutes. Followed by that will be a debate about the issues concerning torture amongst our panelists. And then there will be a conversation with the audience.

It's my great pleasure to thank The New York Review of Books and The Carnegie Council. And now, it gives me great pleasure to introduce Joel Rosenthal, the President of The Carnegie Council.

JOEL ROSENTHAL: Thank you, Paul. First, I want to thank Paul for his energetic embrace of this program. I believe that people vote with their feet and I'm just delighted so see so many of you here. I know it's not an easy thing to do to come to discuss something like the question of torture. I want to also thank Bob Silvers, at The New York Review of Books. I'm glad we've established this triangular relationship. We all share certain values, certain concerns. It's good that we pool our resources, and it's good that we do it in a place like this— a public library—so important to what Aryeh and I would call "The Open Society," where there is freedom of expression, where there is lively debate, and where we can learn from each other. So, thank you all for coming. And I am now going to turn the program over directly to Aryeh Neier, who will lead us. Thank you.

Discussion

While this is true of the response to torture in many different countries—it has certainly characterized the response to Abu Ghraib—most people, when they look at the physical act, are repelled by what they see. And yet, the moment people begin to talk about the verbal act, what was the question being asked, or what was the information needed, they begin to countenance the idea. And I'll just say again briefly that there is no basis for believing that actual information is gotten. Instead, it's a way of simply hijacking the moral reality. The clear instance of this in our own time is the "ticking bomb" argument, where there is not even the pretense that we're talking about a real event, but a kind of nakedly hypothetical event that is meant to somehow indicate the largeness of my world, on behalf of which I'm willing to carry out this act.

People sometimes speak with surprise about the fact that the guards at Abu Ghraib took pictures. But picture-taking is in fact completely compatible with what we've seen in other countries over many decades. In Chile, torture was called "the blue-lit stage;" in the Philippines, it was called "the production room;" in Vietnam, it was called "the cinema room." So this idea of producing a kind of compensatory drama at a moment where a country feels great weakness comes with the act of torture itself. And, in our own case, the kind of ghastly spectacle of intelligence-gathering at Abu Ghraib or Bhagram in Afghanistan, or Guantanamo, is wholly consistent with the intelligence failures that have been chronicled in the 9/11 Commission Report. Or, again, in the recently released material of the 700-page Silberman-Robb Report on the attempt to get intelligence on Weapons of Mass Destruction in Iraq that went so terribly awry. It is when a country has lost belief in its ability to gather information legitimately that it resorts to torture.

As you may know, Amnesty International, in its recently published 2005 yearbook, has recommended that Congress set up an independent commission to see whether the regime that tortures was a small group of prison guards in Abu Ghraib and Baghram and Guantanamo, or whether instead responsibility travels all the way up the official hierarchy. And though it would, of course, be up to such an independent commission to determine the degree of official responsibility, I think that there are already clearly visible several ways that we must recognize official responsibility.

One is the way that Mark Danner has written about, that is so in evidence in the documents that he collects together: That is, a direct line that goes from the February 2003 memo of President Bush that deprived people in Guantanamo of prisoner of war status, and therefore, access to Geneva Conventions; or the Rumsfeld April 2003 memo that began to imagine torture procedures that could be countenanced; and the way in which this licensing of cruelty migrated to Abu Ghraib, which was officially under Geneva protection, but where the guards got confused about what acts were permissable. In fact, as you may know, again, thinking of the documents in Mark Danner's book, the Jones/Fay Report very specifically shows techniques—dogs and nakedness—that migrated from Guantanamo to Abu Ghraib. And the Fay Report even points out that two of the guards in the 205th Military Intelligence Battalion Brigade at Abu Ghraib were actually in close proximity to the two deaths that happened in Bhagram.

A second thing that needs to be taken under consideration is the way in which certain acts carried out by our government made both prisoners and soldiers at Abu Ghraib vulnerable. It's common now to think and say that terrible untruths were told about Weapons of Mass Destruction in Iraq, and also about the willingness of the population there to greet us. Those two factors are explicitly mentioned in the Jones/Fay Report as contributing to the terrible conditions at Abu Ghraib prison. In fact, the placing of a prison in the Sunni Triangle, a place of great hostility, itself violates Geneva Conventions, so that a hostile environment is not just a neutral, accidental entailment of what went on, but a serious centerpiece. So, too, at least one of the reports— I think it's the Jones Report— mentions the pressure that came from the intelligence community to get information. About what? Usually the content isn't specified, but at one moment they specify that knowledge about Weapons of Mass Destruction was part of the information sought. So the prepsoterous administrative claim—that Iraq had nuclear weapons—that could not be verified by any of the official inspection teams, now needed to be "verified" in the cells at Abu Ghraib. And in Janice Karpinski's testimony in the Taguba Report, one can find statements about her concern to at least meet the minimal Geneva standards for feeding prisoners, clothing prisoners, giving bedding to the prisoners, as well as securing the safety of both prisoners and soldiers from war zone hostilities. Since I've run out of time, I will look forward to speaking more later.

ARYEH NEIER: Professor Rejali has devoted his scholarly career to the subject of torture. He is our next speaker.

DARIUS REJALI: Thank you. Exactly a hundred years ago, my Iranian great grandfather fought to defend his way of life. He did not hesitate to turn cannons on crowds or to torture people he considered anarchists and terrorists. His opponents said, "There, you see, his way of life is a scam game. These people disguised barbaric force with high-minded talk of values."

And who was to say they were wrong? For, if honorable men cannot fight with one hand tied behind their back and win, who on earth are they, and what do they represent? I'm here to urge you not to make the same mistake as my ancestor.

First I'll speak about torture, then I'll speak about torture and democracy.

One can distinguish two kinds of tortures or intensely painful physical techniques: those that leave marks, and those that do not. The techniques that don't leave marks are on your handout in the chart. They include one set of techniques I call "Anglo-Saxon modern," developed largely in the context of British military practice, slavery, and American penal practice in the nineteenth century. And there is another set from World War II —before World War II, actually, in the French Colonial context: specific combinations of electro-torture and water torture that I'll call "French modern."

Virtually all of the techniques Mark Danner has documented around Abu Ghraib descend either from French or Anglo-Saxon traditions, but there are more recent techniques. These are painful techniques: sleep deprivation reduces a body's tolerances to muscular-skeletal pain, causing deep aches, first in the lower part of the body in the first 24 hours, followed by large pains in the upper part. Animal tests show that it also increases sensitivity to mechanical, thermal and noxious electrical stimuli, making it the ideal supplement for torture around the world. As Menachem Begin said of his own experience of sleep deprivation, hunger and thirst are not comparable to it.

It does not matter to me whether you call these coercive techniques or torture; the only thing that matters from the empirical standpoint is, what's their history, what's their effect, and do they work for the purposes to which they are put?

All the evidence suggests that these techniques are spreading. The bar chart in the handout is a qualitative study of the increasing scope of electrical torture—scope, meaning the contagion effect from country to country, not the magnitude. The graphic charts represent the first dividends of a torture technique data set, which will be unique, but it will enable researchers to identify regional trends and factors that shape the contagion and learning effect.

This work builds on my book, Torture and Democracy, which will be out in January, 2006. The 3,000 footnotes of this manuscript, and over 2,000 sources cited in 14 languages are only a small part of the books read and not cited. They will cover everything from Vietnam decolonization and commercial slavery to obscure colonial prisons and barely-known sideshows of World War II. These histories will point, one after another, to three basic claims: First, there is a long, unbroken, though largely forgotten history of torture in democracies, stretching back some 200 years. Second, the priority is on techniques that don't leave marks—stealthy techniques. Third, that democratic states were leaders in adapting techniques that have now spread around the world.

It's a source book, but it will also have a series of plausible claims that I will make a little bit more apparent. One is that when we watch, interrogators get sneaky—in other words, whenever people are watching, interrogators typically turn to torture techniques that leave few marks. Why? Well, because, as Elaine Scarry has pointed out, the absence of physical wounds— the torture is about the ability to communicate, and the inexpressibility of pain really matters here. It produces a gap between the victim and the community. In the absence of physical wounds or photographs of actual torture, who is one to believe?

Stealthy tortures undermine the relationship between people and their communities. You might think these emerged in the form of national emergencies, and that's sort of right. But they also appeared in places like Tokyo in the 1980s, Sao Paulo in the 1990s, Chicago in the 1970s and 1980s, and New York in the 1920s. In these cases, they were used primarily to make streets safe. Homeowners, city officials and businessmen, typically with tacit consent, let the police do their work. There is no sharp line between domestic policing and military interrogation, in my research. On the contrary; decommissioned soldiers carry stealthy techniques to their civilian jobs as police, and vice versa. This has happened twice in American history, in two separate wars in the last century, and the techniques of this war may yet appear in a neighborhood near you in the next twenty years.

Finally, do they work? You may have heard a lot of various kinds of claims about whether they work. A lot of these claims for and against are based upon testimonial literature. But it's an empirical question, and the question is, how would you know if it really worked? Well, for one thing, you'd have to go through the Battle of Algiers, incident by incident, and compare it to affidavits, memoirs of interrogators, and knowledge of known identities, not just watch the movie. One must map Gestapo torture techniques by place and year across Europe, based on over 800 Resistance memoirs and trial transcripts, and analyze the sources of successful and unsuccessful operations. And there's a variety of other information.

So, does it work? Well, let me be clear. There are three ways you can use torture: to cause fear, to elicit a false confession, to get true information. Can organizations use torture to intimidate prisoners? Yes. Can organizations use torture to produce false confessions? Yes, absolutely, though it's hard. But these cases of torture working are not the important ones. The real question is whether organizations can apply torture professionally to produce true information better than other forms of intelligence gathering.

Now, Mark Bowden has argued, quite persuasively, I think, that there is a slippery slope in torture. In fact, my own research shows that there are eleven separate social scientific mechanisms one can identify that drive the slope. And the slope is far more severe when it comes down to interrogation rather than false confessions, for a variety of reasons. But it might be worth it, even if it's messy. Yet, on the contrary, "torture is the clumsiest method available to organizations to gather accurate information."

Don't take my word for it. That was a quote from a Japanese World World II manual for interrogation. It's possibly even clumsier, in some cases, than flipping coins or shooting randomly into crowds. The sources of error are systemic and ineradicable. We can go through the main examples of the apologists, the Battle of Algiers, the Gestapo, et cetera. But even in these ideal cases with generous assumptions, in operations in which information is gathered mainly through torture, we're talking about torturing and killing twenty innocent prisoners for every accurate hit on a guerilla or resistance organization member; not statistically random, but arbitrary in pretty much every other sense. That's your ethical choice.

And some techniques are so inaccurate, especially sleep deprivation, that not even Spanish Inquisitors would go anywhere near it. But we use it. Fine! Organized torture also destroys organizations, but also, it destroys interrogators and their families. We now have studies of torturers. Torture, like incest, is the gift that keeps on giving. It spreads in the families of interrogators in the form of alcoholism and spousal and child abuse.

The failures in the American War on Terror are not just surprising accidental results of something that worked for the French in Algeria, and the Gestapo and other military forces in other places. Hardly. They are the inevitable reward for following myth and movies, rather than well-known principals of intelligence-gathering that are far more accurate.

ARYEH NEIER: Thank you very much. Mark Danner has written extensively about torture in the current circumstances in The New York Review of Books.

MARK DANNER: Thank you very much. I'm feeling a degree of anxiety here, because I didn't get the handout and I feel like you know more than I do. And also, Aryeh may loom up at any moment. The title tonight is "A Question of Torture," which was the subject of some negotiation. I'm not sure who won, but it's an interesting title, because the question I have is, what exactly is the question of torture? What are we here talking about, exactly?

One can theorize a good deal—as Mark Bowden did, I think, very eloquently—about what should and shouldn't be done to bridge the gap between a felt security necessity that came to us, people are agreed, after 9/11, and our moral and legal obligations, the latter of which were so eloquently set up by Aryeh.

But, I think one has to begin with the premise of what's happening now, which is that we are torturing now. The United States, under this Administration, and in the wake of 9/11 moved from a policy where, unofficially, at least, it did not torture, to a policy where, officially, it does.

Some of those documents that delineate this path were mentioned by Elaine Scarry. They begin with the determination by President Bush to withhold Geneva Convention protections from prisoners taken in Afghanistan—both Al Qaeda and Taliban—and they moved them through a path that we can follow fairly well. We don't have all these documents, but we have enough of them that we can look at decision-making at the highest levels of the government—sort of like looking at a jigsaw puzzle, where we have, perhaps, a third of the pieces.

And we can see what decisions were made, and who made them. Notably, the Department of Justice, various officials in it, and the Office of Legal Council, which is the think tank of the Department, came up with a memo, in which they re-defined the terms that Aryeh quoted, redefined what torture means under the governing statutes. They said, we have to go beyond the definition that he gave, and say that for somebody to be tortured, it just causes pain equivalent to major organ failure or death. Alright? That's what was in the memo.

Now, I don't have a lot of time, so we can't go through this point by point. But what I can tell you is that it's quite possible to trace a path whereby these memos, and particular language from these memos, find their way into working group documents that the Department of Defense put together in the Spring of 2003, by which they were guided in procedures that were adopted, and which did come, not only to Guantanamo, as Elaine mentioned, but eventually migrated—and that word is used by former Secretary of Defense James Schlesinger in one of the reports—migrated to Abu Ghraib Prison in Iraq, which is nominally under the Geneva Convention protection.

So we're in effect fighting two wars: one outside the Geneva Convention—the Global War on Terror, or GWOT, as the Administration calls it—and the War in Iraq, which is under the Geneva Convention protection. Yet, the interrogators very often are the same; the techniques very often are the same, and we saw a number of policies, which you saw very dramatically in those photographs, that came to Abu Ghraib.

Now, I want to go back to the question of what is "A Question of Torture"? What are we talking about here? I'm sure many of you saw the a piece by Tim Golden last week in The New York Times that reported the brutal details of two Afghan inmates' deaths. In this enormous report, it talked about "pulpified" thighs; this man who was kneed in the thigh repeatedly, so many times, that a blood clot went up to his heart and he died. At least one of these people had nothing whatever to do with the Taliban. Anyway, the report is extensive. I urge you to have a look at it if you haven't seen it.

The reason I want to raise it now is because, almost precisely a year earlier, in the same newspaper, we have Afghan deaths linked to a unit at an Iraq prison. Now, Tim Golden's report is May 20, 2005; this report is May 24, 2004. It tells the same story. Tim has a lot more details, but it's the same story. So we're back again: what is the question of torture?

I would say the first answer to the question of torture is, we're doing it! The second answer is, we know about it! And we have here, as in other things connected to this administration, what I would call a "frozen" scandal: that is, the revelation has happened, the news continues to come out, we know what is going on, we have increasingly lurid descriptions of what is going on in secret detention places around the world. We have the documents showing the planning for this; we have documents showing the permission for many of these techniques. What we don't have is any legal or moral way, apparently, to confront it. We have gatherings like this one, but we have no process in Congress, no true investigation to look into precisely what's happened.

In the process of scandal that has been, I would say, established at least since Watergate, you have revelation, and then you have then an official investigation whereby the community can decide on a story: what exactly happened here? We'll all agree, and then follows adjudication and expiation and punishment. We are stuck at revelation. We have nowhere to go.

I admired what Professor Rejali said about whether torture works, whether it doesn't. Elaine Scarry talked about it as well. I feel very uncomfortable putting the argument against torture squarely on its lack of utility. Because many interrogators I've met—and I've been interviewing a lot of them recently, who've just come back from Iraq—essentially say, in some cases, pain works. And they tell me that what has happened is, where these methods have moved away from Abu Ghraib, they are now being used at the unit level—at the division level and especially at the brigade level. That is, people are picked up, they're beaten very severely at the brigade level before they're turned over to actual prisons. And it is happening throughout the country.

Now, what is the drawback of this? I would argue that the first drawback is a severely moral and legal one. I would argue that it lowers us, this country, severely, when we engage in this sort of activity. We can talk more about that perhaps in the discussion.

The practical consequences, I think are very clear. Elaine Scarry alluded to the fact that torture is a strategy of weakness. You engage in torture because you are not able to get the information necessary to fight a counter-insurgency war. Now why are we not able to get that information? Because we do not have the political standing—that is, the confidence of the population that will allow them or persuade them to come to American forces, whether it's in Iraq, or in Afghanistan, or more broadly in the global war on terror, and give the intelligence necessary to fight the war.

Mark Bowden, I think, put his finger on the fact that intelligence is the key element in this war. And when I say "this war" I mean not only Iraq, but the broader war on terror as well. It is a political war, which is to say it's a war about persuasion. Come to to the American troops, and tell us where the bad guys are. Which is how the American military talks in Iraq. Tell us where the bad guys are. Tell us where we can find them.

Well, in order to do that, those people on the ground, whether Iraqis, Afghans, or wherever, need to have some faith in American forces and in the American project. What have we given them to instill that faith? These images, particularly "hooded man" but also "leashed man" are absolutely prevalent in Iraq. You see them on murals, and throughout the Middle East. It seems to me that the single salient fact about torture and what it has done practically is the political damage on the ground that this has done to us, our moral standing, and the progress of the war itself.

ARYEH NEIER: All of our speakers spoke eloquently. All of them are against torture. But Mark Bowden suggests that there is a ticking bomb scenario in which it may be appropriate to engage in torture. And I'd like to hear how the other three panelists would respond, or whichever of you wishes to respond, to his ticking bomb scenario. Is it something that is real? And if it is real, what would you do in those circumstances?

ELAINE SCARRY: I had the responsibility for answering Alan Dershowitz's arguments about the ticking bomb in a recent book on torture published by Oxford. Some of us in this room probably think there is no imaginable circumstance for torturing. Whereas other people probably think there is an imaginable circumstance for torturing. But I think it's important to see that whether one imagines a circumstance for torturing or not, doesn't change the fact that torture has to be an absolute prohibition.

Mark Bowden ended his description tonight by saying that if you feel you have to commit torture to save a child, or to save the world from nuclear weapons, then you must accept the penalty for it, whether it's imprisonment, or even death, as it could be in some places. To me it's very odd that people can always imagine circumstances in which they would, in a high spirited way, act on behalf of humanity, but can't imagine giving up their own liberty to do that. So there's no need to make torture legal. I think Mark Bowden was saying this at the end.

The other point that I would stress is one that the legal scholar Sanford Levinson makes: we're talking about state-sanctioned torture now. There may be situations where a parent does something to save a child; that doesn't mean that a state should ever be authorized to do so.

ARYEH NEIER: Mark?

MARK DANNER: Well, I'm always fascinated by the ticking bomb scenario. Because there are all these cases that are real, that have actually happened, and none of them constitutes a ticking bomb. And one always brings this up as kind of an ideal case. Mark pointed out that there are some instances or some examples of it in Israel. I don't know of any, although I might not know of any, because they could have to do with Khalid Sheik Muhammad and others. But I don't know of any in Iraq, or in the present war on terror.

The problem is that when torture's actually applied, it spreads. It becomes a method. The ticking bomb scenario sounds like a strategy for limiting. That is, it sounds like, "You know what? We won't do this, except under this one extreme case." But it seems to me that's what philosophers call a category mistake. Because it isn't really a strategy for limiting. You don't get someone who you can point to who knows about a plane in the air with a bomb in it, that if you're not able to break him in two hours, all these people are going to die. That's a pure case, and a case, so far as I know, mostly of the imagination.

What you do get is prisoners who are picked up in sweeps, and this is going on now on your television screens. In the current Operation Lightning in Baghdad, you have things called "cordon and capture," where you secure a neighborhood, and go in and arrest basically all the young men. They're brought to prison, they're interrogated. Usually treated very roughly. And some who are suspicious, however defined, are treated very roughly indeed. That is how torture is used now. And when you finally get names from those people, the people you then pick up are treated in similar ways. So it has this natural tendency of expanding. And the ticking bomb scenario suggests that you can limit it to a certain situation.

Now to go back to his original question, and Mark's original point about the Israeli solution, if we can call it that. It essentially says that this is illegal; however, if a security professional is in a situation where he feels that this is absolutely necessary right now, he takes it upon himself to do it, and must justify himself afterwards. I think that is a legalization probably of simply the fact of the matter. I think if there ever really were a ticking bomb, where people were confident that it was a ticking bomb, they would use all means to obtain the information.

But I'd make one caveat to that. Remember, that the assumption under that whole argument, the one I just made, is that torture works, and is the quickest way to get the information. And this is not true. I'm not trying to say that torture never works. I'm just saying that it is not true that the gloves come off, and we can get the information. The only thing that's keeping us from getting it is these human rights gloves that we wear, legal gloves. That's not the case.

The Army Field Manual 3452 on interrogation has interesting things to say about the use of violence, and how ineffective it is against many, many classes of prisoner. This is a complicated question. It isn't just true that if we beat the hell out of them, we can get the information. That is not how it works.

DARIUS REJALI: It's the basic question isn't it? I mean that's the question everybody wants to know. And I guess there are a number of things that I can add to that. Basically, the first question I ask when someone puts up a ticking time bomb argument is exactly what kind of apology is this? Is this an argument that torture should be moral and legal? Is this an argument that torture is immoral and illegal—or immoral but legal? That's Professor Dershowitz's argument. Or is this an argument like Mark's, that it's moral, but should be illegal?

Now if you want to argue about legalization, I think Mark Bowden's argument is right. There is no way you can go from one instance to show that you can legalize torture without getting down the slippery slope. It will take you down to the bottom. I appreciate it, because it's an argument that says torture is like civil disobedience. You break the law, and then you stand for trial.

The problem is that I have read about lots and lots of torturers, not one of whom has been honorable enough to come forward and stand for trial. Actually there's one exception, and that's Colonel West in Iraq, who actually did come forward. And the techniques I have studied are stealthy ones that don't leave marks. So sometimes it's very hard to prove that something was done. That's the first point, I guess.

The second point is that actually the first time the story of the ticking time bomb was ever articulated was in a novel called The Centurions in 1961. It's essentially a fictional story of what should have happened in the Battle of Algiers. It produced effects that were really quite striking, and then it became a movie with Anthony Quinn, called "Lost Command" and since then it's entered the popular imagination. So it's a story. And it's a very powerful story. But let me tell you why I think the story has a punch. The punch of the story is that democracy has made us weak, and real men know what to do.

ARYEH NEIER: Mark, I'm going to give you an opportunity to respond to these comments, or if you prefer, I have another question for you.

MARK BOWDEN: Well, I would like to respond just briefly. I think that the word "torture" is so charged that you have to take into consideration that when I talk about coercion, I'm the first to admit that there's no way of drawing a clear line between coercion and torture. But in my experience in investigating this story that I did for the Atlantic Monthly, I found that in fact torture, as Professor Rejali is saying, is not terribly effective.

But fear is very effective. Fear according to everyone I interviewed in many countries, is a very strong motivator for people to cooperate, as is discomfort. And ideally, when I talk about using coercion in interrogation, you set up a scenario where the subject of interrogation has alternatives. The subject can improve his or her conditions, or can make his or her conditions worse. They can improve conditions by being helpful, and they make the situation worse by being unhelpful.

And interrogation also does not just mean a person in a room with a rubber hose asking questions. It's a process whereby a person is asking questions, and eliciting information which ideally is followed up on rapidly. So that if the individual under interrogation is providing useful accurate information, the questions might be "Who are the other members of your cell who are meeting in the city? And where were you living?"

Basic information. If they're providing helpful, useful information, their situation can improve. If they're lying, if they're refusing to be cooperative, their situation could be made to worsen. It could be made to worsen in a lot of ways short of pulling out their fingernails. It could be made to worsen by the quality of the food they're getting. The number of hours of sleep they're getting. There are many different ways, as many different ways as there are human imaginations.

So I think, when I say that the use of coercion in interrogation is a vitally important tool, I'm talking about the whole spectrum of technique. And I think, and I agree the literature shows, that the furthest extent of coercion, where you're getting into torture, is generally ineffective. Because people shut down, people will tell you wrong information, and basically you build a wall between yourself and them which is impossible to bridge.

ARYEH NEIER: Mark Danner wanted to have another word, and then I'm going to come back to a question for you.

MARK DANNER: Well, first of all I agree completely with the last point you made. And it's interesting, that torture is not only the strategy of weakness, it usually covers up weaknesses in the intelligence gathering process. The interrogators I talked to say that to me all the time. There are figures that show that 80 to 90 percent of people in Abu Ghraib had nothing to do with the insurgency—that's a U.S. military estimate, by the way—which indicates that they're getting it wrong. They're not arresting the right people.

In any event, I wanted to make a different point. Professor Rejali, at the end of his remarks just now, said something very important, which is that there is this notion that when push comes to shove, you have to be real men and do what needs to be done. All this stuff about democracy and legality and morality—huh!

One of the metaphors is that there's a seesaw, and you have to balance national security and legality, or human rights. And that metaphor is extremely misleading. Because it implies that every increase in human rights protection or legality is a decrease in national security, and vice versa, which is absolutely not true.

The other metaphor is "taking the gloves off," which a counterterrorism official used before Congress. Mark Bowden quotes it, and many others have as well. It is, I think, another highly misleading notion that usually we have the gloves on. Why? Because we have the luxury of following these legalistic norms. But now, actually, we can't do that anymore. This luxury is impossible. And the fact is, that every state that tortures routinely—the Argentines in the late '70s for example, and you can name many others—all basically say the same thing: We need to justify this on grounds of stringent national security. And I just would urge you, when you see that metaphor, to think about it a little bit. Whether it's the seesaw in the balance, or taking the gloves off. I think it's a very important point.

ARYEH NEIER: Okay, a question for Mark Bowden. There was a point that Mark Danner made that intelligence is vital in the struggle against terrorism. But he is suggesting that the use of torture is an obstacle to gathering intelligence. He's saying that it's the kind of thing that becomes known, that makes those who engage in torture hated, and therefore creates an environment in which it is possible for those who engage in terrorism to move without being fingered, without being called to the attention of the authorities who may be searching for them. That it's part of the problem, rather than part of the solution. How would you respond to that?

MARK BOWDEN: I would agree. I would think that without a doubt, the widespread practice of torture and strong-armed methods in military prisons in Afghanistan and Iraq have just terribly hurt our efforts. And I think that having said that, I suspect that those kinds of activities and that kind of behavior is true of just about every military prison anywhere in the world in the history of man. What's different about today is digital cameras and the easy reproduction of images, which have immeasurably hurt our efforts, and which make, I think, a very strong argument against any kind of wholesale use of these kinds of techniques. Because I do think without a doubt, if you're strong-arming people on a large scale, you are creating serious public relations problems in a community that your'e trying to win over. WIthout any doubt.

Having said that, my argument is that in rare instances—such as someone like Khalid Sheik Muhammad, or Abu Zubayda, key figures in known dangerous terrorist organizations, known to be planning on an international level, attacks that kill hundreds and thousands of people at a time—these people I think are appropriate subjects for intelligent coercive interrogation. And I do think that in those instances, you do give up something of national security, if the most you can do with Khalid Sheik Muhammad is ask him politely to tell you what he has in the works.

ARYEH NEIER: Okay. Where does the question of law fit into that scenario?

MARK BOWDEN: Well, the question of law, as I think anybody who's listening, can appreciate, is extraordinarily complex. Because in the United States, if you're a United States citizen, presumably you would be protected from any kind of coercive or torture treatment by the ban on cruel and unusual punishment. Under the terms of the Geneva Convention, I think the best you can do is feed someone, clothe them, and send them to Harvard, basically.

ARYEH NEIER: You can't engage in coercive interrogation if the person is a prisoner of war. But Khalid Muhammad is not a prisoner of war.

MARK BOWDEN: But he's only not a prisoner of war because we've chosen not to define him as such.

ARYEH NEIER: Right. But we do have the UN convention against torture ...

MARK BOWDEN: Which bans severe torture.

ARYEH NEIER: But it also bans cruel, inhuman and degrading punishment. And the United States says whatever is prohibited under the Constitution of the United States is what we have committed ourselves to prohibit when we ratify the UN convention against torture. We also have customary international law that says that under any circumstances, torture and cruel and inhuman and degrading treatment, both as separate categories, are prohibited. So there really isn't any wiggle room here. There's no place that someone is not covered.

So my question to you is, what's your concern with the law? Is it simply something that one pushes aside and the individual takes the risk? What's the situation?

MARK BOWDEN: Well, I think the situation is that we should abide by our agreements and by our own laws. And that anyone who breaks the law ought to be punished for it. Although the decision to prosecute someone is always an executive decision. It's made by the Attorney General, or it's made by the Chief Prosecutor at the court in The Hague, or whatever. And those decisions are political decisions. In the present climate in this country, interrogators may be breaking the law, and sadly, they appear to be breaking the law on a very large scale. But I don't think there's any chance that any of them are going to be seriously called into account for it.

ARYEH NEIER: Just to follow up on the law, condoning and acquiescing is the equivalent of engaging in torture. So basically what you're doing is roping a larger number of people into the legal infraction.

MARK BOWDEN: Without any doubt.

MARK DANNER: I was just going to say, I think it's important to point out that this is not the administration's position, obviously. Their position is they are not breaking the law.

ARYEH NEIER: Well, the administration issued a document on December 30th 2004. It's a Justice Department document and it repudiates in its entirety the August 2002 Justice Department document.

MARK DANNER: It doesn't quite.

ARYEH NEIER: Well, they say so.

MARK DANNER: I'm not a lawyer, and I'm taking my life in my hands here, but there's a footnote that essentially says, those decisions made under the terms of—and this is not by any means a quotation—of the earlier interpretation shall not be understood to be in violation of the law, which is about as large a footnote as one could conceive.

Let me put it on a different level than a legal one, where I'm absolutely unqualified to argue. I had a debate a few weeks ago with John Yoo in Berkeley. He was one of the co-authors of the so-called "Torture Memo" issued in August, 2002. And I stood up and read a document, which I would urge all of you to read. In fact in general, I would urge you to go back to the primary documents. There are depositions here, accounts that were taken by army investigators of what happened to people. And it's extremely important, I think, to read what these people say in their depositions.

So I read this account which was about being beaten, being hung by manacles from a window until the prisoner lost consciousness, being beaten over a period of many days, being violated with a billy club. The interrogator was present. This was not "Animal House on the night shift," as the administration calls it. It was extensive, it went over many, many days. So I read this, and John Yoo's reaction was, "Well, that's plainly illegal."

And I tried to show as I was reading the document the various steps that had been taken, and how they coincided with certain things that had been permitted explicitly by the Secretary of the Defense, and indirectly by the Department of Justice, for which he worked. And he essentially just would not accept this. The administration's attitude is things that come out into the public and look awful and disgusting, those are illegal, and we should obviously consider those to be illegal. But they don't want to see the clear descendants of the activities that people undertook following orders— following interrogation procedures that were developed by officers, and the legal decisions at the top of the administration. And until we have a real investigation, a Congressional investigation, or perhaps a judicial one, it will not be possible to establish that story.

We know that story exists. We've read it. But it is not the official version of events. And the administration can still say, "We don't torture, that's plainly illegal," and continue to do it. Which is why it seems to me we are all to some degree as citizens implicated in this.

ARYEH NEIER: Now Professor Rejali wants to comment, but I have a question for you at the same time.

DARIUS REJALI: Mark Bowden suggests that it's really the advent of digital cameras that makes the situation in Iraq different from the situation in previous conflicts. In effect, he's suggesting that the same things were done previously, but now we're much more aware of them because of the possibility ...

ARYEH NEIER: ... of recording them and disseminating the information in such a dramatic way. Now you argue that worldwide we've had a significant increase in torture. What's the evidentiary basis for that argument? How do we know that the same things weren't being done during World War II, and during the Vietnam War? What basis do we have for saying this?

DARIUS REJALI: I want to make a point about Mark Bowden's point about the torture of Sheik Khalid Muhammad and so forth. There's a well known contract that resistance groups make, which was first developed by the German Communist party in the 1930s against the Gestapo and has been used ever since. It is that in the first 24 hours, you must keep your mouth shut, and afterwards you can talk as much as you want, because all your information is useless. I think it's very important to know that this is a standard resistance strategy, and I'm sure that as soon as one of Al Qaeda's people is known to be caught, they change everything. So the question of torturing these people in a certain sense is not particularly important after the first 24 hours. This is at the heart of this question that Mark is raising.

Now as to the the Frankfurt case of the child who died, which Mark made a good point about: One of the things that my research shows is that actually torture works in peacetime and non-emergency conditions, where you don't have organizational degradation, false information, and all sorts of things.

And just to go back to this point, torture works better than what? What are we comparing it to? The standard is very simple. We've known this for over 30 years; there are lots of government studies. If public collaboration does not exist for police work or any other kind of work, the chances of a case being solved falls to less than ten percent.

Don't watch "Law and Order." The police depend on you, the public. Without you, nobody really is successful. Now I didn't make a claim that torture had grown in magnitude. If you notice the bar chart, it says "scope" not "magnitude." Because it's very hard and subjective to determine how much torture has grown. What I have done on the bar chart is I've shown that there are a certain set of techniques.

ARYEH NEIER: Broadly where do you get that information? I mean how do you know in 1910, or 1920 there was so much torture?

DARIUS REJALI: Well, frankly you read. And you read a lot. And you have a whole team of translators. I surely hope that when my book is out, there are hundreds of young graduate students waiting to write dissertations on how wrong I am about this stuff. But I can tell you with a fair degree of certainty that certain techniques did not exist very commonly before the 1970s. And actually one of the really disturbing things is that the emergence of these techniques that don't leave marks were primarily limited to the main democracies or they had other purposes, such as commercial slavery. Why? Because it lowered the value of the sale if people thought that the slave was a disciplinary problem. So marks were bad.

A lot of these techniques were developed in the context of democracies and other places. Now the point is that they've grown. Why have they grown? Why has there been a contagion effect? Well, I'm sad to say, maybe it's a good thing, maybe it's a bad thing, but interrogators know that you're watching. If you look at the bar chart, where does it start rising? It starts rising in the 1970s with the emergence of the human rights movement. Now that's my hypothesis. And I'm willing to test it out, and I hope that there are other people who will do so too, because there are other variables that are out there that we could test it out against. But it proves in a certain sense that the work that you do is great, because people pay attention. And in some ways it's far more important than the law.

ARYEH NEIER: Okay. Elaine Scarry?

ELAINE SCARRY: I don't think that one can give a definitive answer to the charge that only because of photographs are we seeing this now, and it has actually been here all along. But I do think something has changed.

We accepted the Geneva Conventions shortly after they were passed in the late 1940s. We followed them in Korea to the extent that, at least according to various articles that have appeared in Military Review, we actually prolonged the Korean War by two years, because we refused to have forced repatriation of people who didn't want to go back to North Korea.

In each of the wars that have followed, the military police have been understood as there to protect the prisoners, and to insure the presence of the Geneva Conventions. That's one of their jobs. It's not just they are guarding the prisoners, and by the way, they have to look out for the Geneva Conventions. Central to what they're there to do is make sure the Geneva Conventions are honored.

So for example the U.S. Military Police unit in Haiti filed complaints against U.S. Military Intelligence units about their using abusive forms of interrogation. The military now says had they paid attention to those filed complaints, they would have foreseen the tremendous conflict that came about in Iraq, the tension between the Military Police unit, the 800 Brigade, and the 205 Military Intelligence Brigade. The 800 Military Police Brigade, that has been the subject of so much inquiry in Iraq, was the same brigade that was responsible during the 1991 Gulf War. They were stationed in Saudi Arabia, overlooking prisons and at least according to the things I've read, they were highly trained in rights protection and did in fact protect prisoners' rights.

So that I don't seem to be giving too rosy a picture, let me quickly say that the place where our record is deplorable is in training torturers for other countries. And just to give you the figures on that, the Congressional investigation of the 1989 murder of Jesuit priests in South America showed that 19 of the 26 officers had been trained at our United States Army School of Americas. The UN Truth Commission looking at torture in El Salvador, found that 40 of the 60 officers who were held responsible had been trained at the School of Americas. The Colombia Commission found that 100 of the 246 officers found guilty of torture were graduates of the School of Americas. There have also been very famous South American leaders like Noriega who we know were trained at the School of Americas. So I'm not trying to give a benign picture of the past, but I do think that there is a very profound change.

ARYEH NEIER: Okay, Mark, want to comment?

MARK DANNER: I think the profound change here is the fact that it's officially sanctioned. That there's a paper trail where you can follow the official sanctions, and that we all know about it, essentially.

You know, people often make the point about the School of the Americas, and I think it's very well founded. But I think there is something that is very different here, which is that the United States is fighting a counter-insurgency war in Iraq, and more broadly, using torture as a key element in fighting that war. Documents exist, including one issued in August 2002, at the same time as the so-called torture memo, that gave explicit approval to the use of water-boarding for example, which is something I remember from Latin America. The Argentines used it a lot, and the Uruguayans. The French used it in Algeria. You strip somebody, beat them up, which is usually preliminary to anything like that, deprive them of their sleep and food for a few days, and then you strap them on their back on a board and lower their head into a bucket or basin of water. Usually fetid water, soapy water, urine. And they haven't drunk for days, so they take all this in, and start to drown. The trick is stopping it just before they die. That's what separates a good torturer from a bad one.

This technique was explicitly approved. We don't have the actual memo, but a New York Times reporter saw it and has reported it as such. To me it seems that's a dramatic difference.

I want to say one word about the point about digital photography that Mark made. When I was in Iraq in October 2003, there had been charges in the wind that stuff was going on at Abu Ghraib. Robert Silvers, the editor of The New York Review of Books, urged me to try to find out about this. And I in my wisdom thought "Oh, I don't really have time to do that. I have to follow these other stories."

But there was at the time a joke going around. I heard several versions of it. The Iraqis, Baghdadis especially, were very upset that Americans had taken so long to restore electricity. Saddam, after the first Gulf War had done it in four weeks, or so, very quickly. The Americans took all summer, and the Iraqis had to suffer through a summer of no electricity and no air conditioning. The joke about Abu Ghraib which I heard in the street several times—and this was October, so four or five months before these photographs came out— was,"Gee, I always knew the Americans would restore electricity to Baghdad. I just didn't know they'd be shooting it up me." A grim joke, but pointing to the general recognition, or the general assumption, that torture was going on at Abu Ghraib.

Now was this just an assumption? Was it part of propaganda on the part of the insurgency, which was just getting underway? I think not. You had eight or nine thousand prisoners stuffed into Abu Ghraib then. And this stuff gets out. Digital photography, I agree, made it an international issue. And it's true, I think, that if Osama Bin Laden came to Madison Avenue and needed a recruiting poster, he couldn't have done better than than "leashed man"—a naked Arab man lying on the floor, a leash around his neck, a leash in the hand of an American female soldier. One couldn't have dreamed of a better recruitment poster. But however helpful those were in recruiting, the fact that the United States was torturing them was broadly known in Iraq already. And I think it's important to point that out.

ARYEH NEIER: Mark Bowden, I want to give you an opportunity to respond, but I also want to ask you a question as part of the response. And that is, we are in the age of the digital camera, and there's probably little likelihood today that if torture does occur, even in the extraordinary case that you're talking about, and if it doesn't spread beyond that, that it will remain secret. It will become known. And does that give you pause when you think about the torture or coercive questioning of, say, Sheik Khalid Muhammad?

MARK BOWDEN: It does give me pause. And I think any time that you decide to put the screws on somebody to get information, whether it's done in a relatively mild fashion or a severe one, there's a downside to that. To the extent that it becomes known, and I think in a democracy it ought to become known, you lose something from that. And so I think that that in itself ought to be a limiting factor on the use of such techniques, and ought to emphasize that you would only use coercion in the rarest of situations, and in the most defensible circumstances.

So whether it's an individual interrogator who has to answer to charges that he or she violated the regulations of the law by keeping a prisoner awake for two days, or keeping them cold and wet in a cell for too long, or whether it's as a country answering whether or not the practice was justified in this particular instance, I think that the bottom line is that you only do it when the circumstances warrant it. When you are prepared to defend your action, when you're prepared to make the defense of necessity.

MARK DANNER: Who decides that though? You're talking about the Israeli, the actual interrogators making that judgement?

MARK BOWDEN: I think it has to be the actual interrogators or in the case of interrogating high value Al Qaeda suspects, like Khalid Sheik Muhammad, it's probably a team of investigators; and whoever's responsible for operating that, would, I think, have to bear some of the responsibility for making that decision. And I think that if you prosecute people, if you hold people accountable, that's the only way that you can limit this kind of thing from happening.

MARK DANNER: Well, in the case of Khalid Sheik Muhammad, so far as we know that wasn't a ticking bomb case—I mean it may have been, but we don't know—

MARK BOWDEN: It would have been justified, in my mind. And I agree with you completely, the ticking bomb scenario is a hypothetical which is used to illustrate a point. I would regard anyone in a position of leadership and control in an organization dedicated to mass murder to be a subject who, in my opinion, ought to be subjected to some kind of coercive interrogation if they refuse to be helpful.

MARK DANNER: So the category becomes any officials in some kind of authority position in terrorist organizations.

MARK BOWDEN: For me it would be, yes.

ARYEH NEIER: When I talk to police officials about this, this is not the international context of terrorism. What they point out to me is that they very often have low level suspects, and through the low level suspects they want to identify the higher level suspects. And so in order to get to those higher value people, it's important for them to be able to treat the lower level suspects in the same manner in which they would treat the higher level people. And so my question is, isn't almost every way of going about this susceptible to the slippery slope problem?

MARK BOWDEN: It is, absolutely. And that's why I think that you can't license it. You can't attempt to define in advance circumstances where it's appropriate, where it's acceptable to use this practice. It has to be a situation where you as the interrogator, or as maybe the head of a team of interrogators, says "I'm going to step over this line, and I'm going to be held accountable for stepping over this line, and I better have a damned good reason for doing it."

MARK DANNER: But that is the ticking bomb justification.

ARYEH NEIER: Let's open this up to the audience as a whole.

Questions and Answers

ARYEH NEIER: Even if you've directed the question to a particular person, I'm going to ask the other panelists if they want to comment on any question. Go ahead.

DARIUS REJALI: Actually, the interrogators at Guantanamo, as far as I know, are fairly young and under-trained. They're not highy professional. And how could it have happened? Well, basically this could have happened any number of ways, but the slippery slope pretty much takes three separate slopes: Increasing the range of suspects, increasing the range of techniques, and the emergence of torturers as a professional class unto themselves—or I'll not say just the torturers I guess—the interrogators as a separate class unto themselves. This is the way the slippery slope works.

On the other hand, it's entirely possible that orders were given, and we have yet to see that. So there are really two models. Either there was a slippery slope, and as William Blake says, the road to hell was paved with really good intentions, or there were orders, in which case somebody's responsible. And that's what history will have to determine.

ELAINE SCARRY: One answer to that was given by a Colonel in the Air Force named Charles Dunlap, in a 1992 article in Air Force Journal. He talked about the fact that the United States has such vast military power that no country or group can confront it through symmetrical means, and therefore these other countries or groups have as their only option using asymmetrical, neo-absolutist practices, like breaking Geneva Conventions or using weapons of mass destruction. The import of the article was to say, we have to figure out how to keep using legal, above-board practices. In fact, he said even if we're attacked by Genghis Khan, we have to continue to be Sir Galahad, which not everybody will think is an accurate view of the United States. But what has happened is that the moment we were attacked with non-symmetrical neo-absolutist practices, we ourselves began to use neo-absolutist practices back, and that's the catastrophe.

ARYEH NEIER: Okay, Mark Bowden, there was a question for you.

MARK BOWDEN: Well, in answer to your question, I think that if the circumstances warranted the use of coercion to get information from someone, and I do think these instances are rare, the question that needs to be asked is, what works? And maybe my imagination is not rich enough, but I can't imagine a situation where desecrating someone's article of faith such as a Koran or a Bible, would be useful in some way in getting them to provide you with information.

MARK DANNER: Let me just add something to that. If you look at the actual depositions and what was done to various people in Abu Ghraib in particular, you see that one of the undercurrents in the descriptions of the abuse had to do with trampling on religious or cultural sensibilities. The use of forced nakedness; the use of female interrogators with a naked suspect; the use of forced shaving the beard off in Guantanamo. This theme, this Koran being flushed down the toilet and all the rest of it, this stuff has been out there for quite some time. You know, it's clear—and this is in the reports, it's not disputed—that some of what was going on in Abu Ghraib in particular, and according to the Red Cross, at Guantanamo, had to do with direct assaults on religious sensibility.

QUESTION: Professor Scarry, could you say more about your comment that the photos at Abu Ghraib were not inconsistent with other instances of torture, and the tendency to document torture? And also especially how that relates to what Professor Rejali was saying about the priority on using techniques that don't leave marks?

ELAINE SCARRY: That's a good question, because there is a paradoxical inconsistency, at least in countries other than the United States, to both dramatize and display the fact that torture is going on, and yet to control the degree to which it's visible in the external world. It has to be just visible enough to instill terror in the citizenry or the residents, but not so visible that they will bring the whole world down on their necks.

Basically what I meant by the photographs was actually not documenting the practice of torture but theatricalizing it. From the outside this is almost incomprehensible, because we look at those pictures and we just think that they are something between horrifying and ludicrous. But for the people there, and for people in "the blue-lit stage" in Chile, or in "the cinema room," the descriptions that are given suggest that those who carry out such acts experience a feeling of power. They see the totalizing fact of the prisoners' pain or discomfort or terror flipped around and now experience it as their own totalizing power.

Everyone can see from the outside that the prison guards in Abu Ghraib were not powerful people. They were under extreme conditions of duress themselves, and yet for the middle-of-the-night duration of that, it perhaps gave them a sense of well being, which perhaps explains their otherwise incomprehensible smiles.

DARIUS REJALI: I'll just add the other side of this. Trophy photography is one of the things that typically happens with the lower agents, the interrogators. It's not something that happens on the upper levels. And it's largely because there's a strange transformation of time and space, as well as, as a French torturer once said, a kind of "jouissance" that one feels through the experience of having total power over somebody. One of the interesting things about the French torturers from Algiers is that quite a few of them have written biographies now in the last five or six years, that are well worth reading. And they tell some of this experience, which is really quite interesting.

I know that it's sometimes said that the Abu Ghraib photographs were taken for blackmail purposes, and maybe some of them were, but frankly, if I was going to blackmail somebody, I wouldn't put a bag over their head. It's clearly something that's happening in the lower level, and we find this not just at Abu Ghraib. We find Indonesian manuals, deliberately telling Indonesian guards in the 1970s not to take photographs, that they could fall in the hands of the press. We find all sorts of cases where people take photographs, because it's such a weird space to be in.

MARK DANNER: Let me comment about the blackmail question. There is some evidence that the photographs, at least some of them—we haven't seen of course the great majority of them — were being used to at least threaten the prisoners with blackmail.

One of the enormous problems with the intelligence vacuum in Iraq is there are no informants. There are no real informants who are part of the insurgency. The idea was to get something on these people, send them back to their hometowns or villages, have them sign up with the insurgency and in effect turn them, use them as informants, which is something the Israelis have done with some success over the years. We don't know if that was ever done, but the way some of them are posed, seems to me to give some credence to that possibility anyway.

QUESTION: I have a question for the group, including Mister Neier. There seems to be a consensus here that the policy of torture executed by the government is wrong, but it doesn't seem to be a consensus shared by the majority of Americans. I heard John Yoo on the radio a couple of months ago talk about this, and he said, "Well, everyone knows about the pictures of Abu Ghraib, and yet George Bush was reelected, and on national security grounds." So I'm just wondering, what do you make of that? As people who are opposed to the policy, what do you do about that? What should we do about that?

MARK BOWDEN: I think the concern for human rights and minority rights has always been a preoccupation of the minority in this country, and that's why the Constitution has been amended to protect the rights of people in the minority. I think on any given day, if you phrase the question correctly, the vast majority of Americans would be against free speech. That's the nature of humanity. That's why we set up institutions to protect things, and one of the good things about journalism is that it can rally that minority of people who are really concerned about these things to take action.

ELAINE SCARRY: I think that there are three answers. One is, leadership really matters. When you have a leader who seems to countenance something, then a lot of people will countenance it, and that's why it's important to have leaders who actually follow the law.

The second explanation is that for certain war crimes tribunals, like Nuremberg, for example, assessing crimes didn't depend on an act of election. Therefore, I hope Congress will appoint an independent inquiry panel that really looks into this.

But then the third thing is that I think that a terrible conundrum occurred in the election. People running for office didn't seem to make torture a big issue. What could be a more major issue? This was it. If ever our country should have been looking at something, this was it. But there's a feeling that you wouldn't want to take something like torture and make it an election issue. Well, of course you would, but we've gotten so turned around about elections that we think only if something is minor should you make it an election issue, and if something is truly grave, then you should honor the somber quality of it by simply not making it a point of contest.

DARIUS REJALI: I'm going to give the West Coast answer, because I think I'm the only person here from the West Coast. Something's dying, and it's an image of America, and it's an image of our identity. Everybody who has read Kubler-Ross is going to recognize these stages of mourning: The Right's in denial. The Liberals are trying very hard to deal with the grief, and the Left is angry. We have to come to terms with the fact that something died in the last two to three years. And only when we have come to terms with that are we in a position to move ahead. That's the West Coast answer.

Many of these reports are wanting, but if you read them all you get a fair idea of what happened and you couldn't ask the question, as the fellow did before, "How could well trained people do this?" The answer is, that many of them were ordered to do it. Several of the pictures of nude pyramids and so on were used as screen savers on computers in the Intelligence Shop in Abu Ghraib. So the notion that this happened late at night and nobody knew about it is not true.

I agree with Elaine about the election campaign. It's obvious that John Yoo's point was slightly ridiculous. You can't say a President was reelected, therefore the American people agree with all of his policies. I don't think that's true. I also agree with her that obviously, and as all of you know, it was not an issue in the campaign. Now, I think there are particular reasons for that.

The first is that it's a distasteful subject. People don't want to talk about it, they don't want to think of young Americans doing this sort of thing. And then in particular, John Kerry had a major political problem, which is that he had come home from the war in Vietnam and denounced atrocities in that war, and he didn't want to talk about atrocities in this campaign, and be in the position of seeming to be anti-American. He was running away from that record. So I don't think it's the case that there was a national consensus around Bush's policies.

I think most Americans, if you asked them today, would say first of all that this was an aberration, and that it's not continuing. They haven't read the report, they're not that well informed on it. And they essentially believe what the President has said. This administration's been very effective and very ruthless in dividing people whose opinions they don't really care about, which is to say all of you—you know, people who read The New York Times, basically—from people whose opinions they do care about.

And I think the people whose opinions they do care about largely believe the administration's story, that these were aberrant acts. The pictures itself themselves tend to support that view. If you haven't read the documents behind them, you look at the pictures and say, "How could an officer have ordered this?" I mean, it's ridiculous. They're outlandish, they're grotesque, so the only evidence that most people have seen, which is the photographs, tends to prove, or at least support, the administration's version of events.

And finally, I think that, depending on how you phrase the question, if you asked most people, "Should the United States use torture?" You'd have a resounding answer in the negative. It depends how you phrase the question.

ARYEH NEIER: Since I was also one of those to whom you addressed the question, I want to try my response to it. First, I agree with Elaine Scarry that leadership counts. I think that if there had been leadership—and it didn't have to come from the President, it could have come from his opponent in the election campaign, because the story surfaced in April of 2004, when the election campaign was already underway—if it had come from his opponent, I think there a stronger public sentiment against the torture could have been aroused. But this happened at a period of extraordinary nationalism, and I think that the formation of public opinion on this is likely to be something that develops slowly and over an extended period of time.

In Germany at the time of Nuremberg, there was not widespread condemnation of the acts of the Nazis, even though the Nuremberg trials were taking place in full public view, and were widely publicized in Germany at that time. The reaction against what took place during World War II really didn't start in Germany until about 15 years after the War, roughly about the time of the Eichmann trial in Jerusalem. And yet today, the condemnation in Germany of what took place during World War II is, I would say, near universal. I think it has often taken quite a long period for such views to develop and to gel. If you look at the photographs of lynchings, you will see crowds in a picnic-like atmosphere. But we're horrified today when we see those photographs, and have come to think of the lynchings as a shameful part of the American past.

And I do think that, even without leadership, although I hope there will be leadership, over time that sense that this was a shameful episode in American history will develop. I don't think it's just because I'm naturally somewhat optimistic, I do think it is the pattern that the sentiments against these kind of events, when they involve one's own country are not aroused right away, because the national sense is so strong that it prevents their emergence in full force. But I do think that it will develop over a period of time.

MARK DANNER: First, I think that is an optimistic view, and I hope you're right. But I think one point has to be made here, which is that we're talking about this as if it was an event that happened in the past, and we are disappointed because our fellow citizens are not seeing it the way we do now.

But in fact it's not an event that happened in the past. It's something that's going on now, so that we have to, in my opinion, reevaluate the notion of what a scandal actually is. We still want to define these things that happened in the pictures at Abu Ghraib and at Guantanamo as aberrant, yet many of these things are going on still. We want to define them as aberrant, which is why you have the question about the training. How could this happen with all the training?

They're not aberrant. And I'm not sure how we get to the point that Aryeh suggests from where we are now, which is where you have a certain number of people who look at these things and are appalled and are concerned about it, and a very large number of people who think, well, this has been taken care of, we don't have to worry about it.

ARYEH NEIER: I will say that if you take any other shameful episodes, whether it's the lynchings or let's say the McCarthy period in the United States, it lasted for an extended period. And yet today when we use the term McCarthyism, it's used as a slur. If you call someone McCarthyist, they think of it as a libellous thing to say about them. But a large part of the country was quite enthusiastic about Senator McCarthy's methods at the moment that he was engaged in them. And it wasn't just McCarthy; there was a great deal else that was going on in the country at the same time of a similar character. It took an extended period until the sentiment against the practices of that era got to be so powerful that we now use the term McCarthyism in the way in which we do.

MARK DANNER: The simple point I'm trying to make is that there needs to be an end point. For example, to follow your comparison, the Army-McCarthy hearings.

ARYEH NEIER: The Army-McCarthy hearings took place in 1954. They weren't an end point. They were a significant point and leadership was provided by Joseph Welch at that particular moment.

MARK DANNER: I don't mean to go on about this, but don't you agree that there has to be a change in policy at some point, and I think that will only come about with sort of concomitant lack of faith in the war itself. You have now six in ten Americans who think the Iraq War was a mistake. If that evolution continues, I think you'll have more pressure on the torture issue, and perhaps eventually a true investigation in Congress. Because there needs to be an official end point, and right now you cannot envision one, simply because of the fact that in effect we're in a one-party state at the moment.

ARYEH NEIER: Yes. I think I should call on the next questioner, rather than continue this debate.

QUESTION: Professor Rejali, I was noticing in your chapter description of your book, you have a sub-heading, "How Torture Warrants Might Actually Help". I understand, that Representative Jane Harman of California has introduced, or wants to introduce, some legislation. I'm wondering about the history of torture warrants and their efficacy, and this is a question for the whole panel. Whether they work, and how would they work. Thanks.

DARIUS REJALI: Boy, that's a whole history. Let me put it to you this way. The torture warrant argument, as you noticed on the sheet that you have, is followed by "Regulative Failure and Varieties of Regulative Failure." And so one of the things that I try and document is all the cases where people tried to legalize torture and failed. And these pertain to the 11 mechanisms that I was talking about with respect to slippery slopes.

But I'll give you the famous instances, and the kinds of things that destroy legal regulation. For example, although you may not know this, the Gestapo actually had regulated policies for torture. They were issued in 1937, and then reissued by Gestapo Chief Mueller, in 1942. There was even a form that you had to fill out when you did an interrogation, which we find as far south as Slovenia. When you look at the descriptions in the Gestapo regulations, and these are people who presumably didn't worry about much, one of the interesting things you find is that the actual practice on the ground didn't match up anywhere with that, except when international citizens are involved, like Swedes. And then they tended to follow the rules. There's actually a case in which Swedes and Poles were arrested simultaneously, and the Poles got worse treatment than the Swedes. So, that's one. Let me give you another one.

During the Battle of Algiers, there was something issued called the Arreste D'Assignation. It was basically a torture warrant. In the first eight months the Police Prefect kept a dossier on all the ones that he issued for Mathieu's forces. He had been at Auschwitz, he was opposed to torture, so he kept a document. In the first seven or eight months before the battle started, there were 800 such warrants issued. In the following first three months of the battle, there were 700 issued, and in the last five months of the battle, there were 4,000 issued each month, for the next five months. In other words, it is very clear that once you legalize it, there's a slippery slope, and it moves awful fast.

ELAINE SCARRY: Yes, I think that the idea of torture warrants is incoherent, and here's why. Part of the reason for warranting is to try to provide a document, and thereby provide accountability. But it's not clear how this would work. First of all, just as now people torture even though it's against the law, once you can have the option of warrants, it's not going to stop people who fail to get warrants from going ahead and torturing. Why would it, since now an absolute prohibition doesn't seem to do that?

Second of all, once you give the warrant, are you then saying that their accountability is clear, that they can't be held responsible or punished for their acts? Legal scholar Akhil Amar has shown that search warrants actually prevent people from being able to present a claim under trespass law, because it seems to license them in advance. So what you will do with the torture warrants is to actually decrease the accountability of those who get the warrants, giving them a clean bill to go ahead and do it, while not diminishing the number of people who are willing to torture without legal coverage.

ARYEH NEIER: We're getting close to the end of our allotted time. I think we're going to take two more questions, so go ahead.

QUESTION: First of all, I'd like to say that I personally am against torture, I would never do it, and I would never authorize anyone to do it. However I find that the whole discussion has been somewhat in the nature of a kind of golden age of security discussion. It seems to me that the question of torture has become a a dilemma, which it wasn't five years ago. I have two questions, essentially, which are somehow fundamental that emerged from the discussion: namely, what is torture, and is it ever right? What is torture? I don't think anybody's really addressed it. There is an idea that torture is coercive interrogation...

ARYEH NEIER: No. The legal definition of torture is the intentional infliction of severe pain, physical or mental, deliberately by those acting under state authority. Coercive interrogation is a different matter. That's prohibited for prisoners of war. You can engage in coercive interrogation in the sense of offering incentives, or offering disincentives, that don't amount to degrading or humiliating treatment, or cruel treatment, or torture, for persons other than prisoners of war. But you cannot engage in coercive treatment for prisoners of war, and you can't engage in any cruel, inhuman or degrading treatment or torture for anyone else.

QUESTION: So far we've just spoken about torture in the prisons, like in Iraq and Afghanistan, but I was wondering if you could talk a little bit about the reports that are coming out now about outsourcing torture? Like leasing private jets under false company names and what's going on now with Egypt, and I think Sudan maybe.

DARIUS REJALI: The question of rendition of course is attached on to the question of torture, or interrogation, and so a lot of the arguments that we made about interrogation apply to wherever they may happen. But there are two or three additional arguments that are made around rendition, that we haven't talked about, and I'll just mention them. The argument about for rendition is, we should give a prisoner over to somebody who has local information and can speak the local language, and therefore is an important source of information. And then secondly, the second argument is that our allies should do more work, and show that they are with us, rather than letting us all do all the dirty work. These are the two basic policy arguments.

The second problem is basically, we haven't developed people in the proper way. If you're fighting something like Al Qaeda, you need to know the language, you need to have a mole inside their organization, you need to get accurate information out of them. If that's the case, why didn't we develop it? Why are we depending on other people? What does it say about the condition of our intelligence services that we didn't do this? And why would we actually depend on another state to do this for us?

So I think rendition is actually twice as bad. Not only does it have the problems of torture, but I think the cardinal rule of intelligence gathering is you don't lose control of your assets. You don't give it to somebody else.

ARYEH NAIER: Elaine Scarry, and then I'm going to give an opportunity to Mark Danner and Mark Bowden, if you want to say any concluding words.

ELAINE SCARRY: Just a note that Section 12 of the Third Geneva Convention specifically says that you can only transfer a prisoner of war to another country that honors and accepts the Geneva Conventions. So you can't transfer to somebody who's going to use a different process. And you can't transfer the responsibility by transferring the prisoner.

ARYEH NAIER: Mark Bowden, any final comment?

MARK BOWDEN: Just that I think that it's very clear that our military all over the world has been given a kind of a license to practice coercion and even torture in some instances, that far surpasses anything that has happened in my memory in modern times. And I think it illustrates Abraham Lincoln's point about human nature. We have to assume that jailers will abuse inmates. It takes an extraordinarily vigilance, I think, to prevent that from happening. The fact that it's happening is normal, it has been happening ever since people have been locked up, it's happening in civilian prisons all over this country. I think that it just illustrates how critical it is that we be vigilant, and that we condemn it when it happens.

ARYEH NAIER: And Mark Danner, any final comment? I don't think you can top that.

MARK DANNER: That was very eloquent. It just seems to me that we tend to condescend to the past. We look at things like the Palmer Raids, or the imprisonment of the Japanese during World War II, or McCarthyism, and say, how could our predecessors have done such things? We know much better now. And it seems to me that we're all of us placed in a moral position, partly because of our knowledge of what's going on, of taking not only an attitude towards torture, but doing something about it.

I guess I don't agree with what Mark said about this going on from the beginning of time. I think to some extent, as I've tried to suggest, that what's ha